P. v. Caporale

Filed 10/12/07 P. v. Caporale CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Susan Rosalyn Caporale (Caporale) appeals from a judgment entered after she pled no contest. Her court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see also Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.

I. FACTS AND PROCEDURAL HISTORY
An information charged Caporale with four counts: evading a police officer, with a willful and wanton disregard for the safety of people or property (Veh. Code,  2800.2); felony possession of methamphetamine for sale (Health & Saf. Code,  11378); felony transportation or importation of methamphetamine (Health & Saf. Code,  11379); and possession of drug paraphernalia (Health & Saf. Code,  11364). As to counts 2 and 3, the information alleged that Caporale had suffered a prior drug conviction for violation of Health and Safety Code section 11370.2, subdivision (c), and was ineligible for probation under Penal Code section 1203.07, subdivision (a)(11), and Penal Code section 1203, subdivision (e)(4). As for count 3, the information alleged that Caporale had served one prior prison term for a drug offense (Health & Saf. Code,  11379) within the meaning of Penal Code section 667.5, subdivision (b).

A. Preliminary Hearing

A preliminary hearing was held on October 24, 2006. Caporale was represented by counsel.

At about 8:48 p.m. on October 10, 2006, Officer Michael Vannucchi was in full uniform in a marked patrol car at the intersection of Everglade and Terra Nova streets in Pacifica. He saw a black car proceeding southbound on Terra Nova without its headlights on. Officer Vannucchi positioned his patrol vehicle behind the black car, turned on the cars emergency lights and siren, and attempted a traffic stop. Caporale, driving the black car, braked abruptly, skidded through the intersection of Terra Nova and Lerida, continued on Lerida, and ran the stop sign at the intersection of Lerida and Redwood.

Caporale next skidded through the intersection at Lerida and Crespi and drove northbound on Crespi toward Fassler. Officer Vannucchi followed her at approximately 45 miles per hour. Caporale turned right onto Fassler and drove to the end of the street, where it reached a dead end. Officer Vannucchi got out of his car and ordered Caporale to exit her car. Caporale revved her engine and made a U-turn. Vannucchi got back into his car and pursued Caporale with his vehicles emergency lights and siren on.

At about 45 miles per hour, Caporale drove through the intersection at Fassler and Terra Nova and failed to stop at the stop sign. As she reached the entrance to State Route 1, she drove through a gas station and struck a curb, blowing out a tire. She nonetheless entered Route 1 northbound and continued to drive with a deflated rear tire. She exited the highway at the Clarendon off-ramp. She failed to stop at the stop sign at the intersection of Clarendon and Oceana. She finally pulled over on Oceana, just north of Paloma. Officer Vannucchi watched as she began to get out of the car, but she got back into the car and closed the door.

Officer Vannucchi and other officers ordered Caporale to show them her hands and exit her car, but she refused. She moved around abruptly and furtively inside the car. Officer Vannucchi saw her looking into the backseat and at the front passenger seat and she reached into the back seat as if she was looking for something. There were no passengers in the car.

After the police arrested her, Officer Burch searched her car. On the floorboard of the front passenger seat, he found a small Altoids box which contained 1.15 grams of methamphetamine in a baggie and numerous other baggies, some of which contained a white powdery residue, and a small silver spoon. On the rear passenger floorboard, he found a glass pipe with white and burnt residue; based on his experience and training, the officer knew the pipe was the type used to smoke methamphetamine or cocaine. In the same spot, he found an envelope that contained a small Whitmans Candy tin. Inside the tin, he found a larger baggie with 4.86 grams of methamphetamine. Under the cars stick shift, he found three small baggies of suspected marijuana. He also found several pieces of paper which indicated that the car belonged to Caporale.

At the police station, Caporale told the officers that she had a box in the closet in her home that contained contraband.^[1] Later, Officer Burch went to Caporales residence. In her closet, Burch found a box. Inside the box, he found a red pouch that contained numerous baggies of suspected methamphetamine and a folded piece of paper with suspected marijuana. Inside a black zip pouch, he found two medium sized baggies which contained suspected marijuana. There were numerous baggies which contained a white powdery residue and two packages of brand new baggies. He found a bottle of Sudafed, a container with a white crystalline residue inside, another container with a powdery residue inside, and a small spoon with a dried liquid residue. Finally, he found another glass pipe used for smoking marijuana.

Caporale was held to answer the charges and allegations.

B. Plea Agreement and Plea

On December 18, 2006, the day scheduled for commencement of trial, Caporale through her public defender requested a continuance on the ground that Caporale wanted to retain a private attorney. The court denied her motion because her case was set to go to trial that day.

Later that day, Caporale entered into a written plea agreement, by which she agreed to plead no contest to count 1 (evading a police officer) and count 3 (transportation of methamphetamine), admit that she had suffered a prior drug conviction under Health and Safety Code section 11370.2, subdivision (c), and admit her probation ineligibility under Penal Code section 1203, subdivision (e)(4). In her written plea agreement, she acknowledged and waived specified constitutional rights, acknowledged that the maximum sentence would include eight years in state prison and four years of parole, and acknowledged that she would receive prison time of not more than six years eight months.

Prior to accepting the plea, Caporale confirmed to the court that her counsel had explained her constitutional rights, the nature of the charges, possible defenses, and the effect of a no contest plea. Caporale understood that the court would decide the appropriate sentence after it reviewed the probation officers report and recommendation. After the court found that Caporale intelligently, voluntarily, and knowingly waived her rights, Caporale entered her plea to counts 1 and 3 and admitted the prior conviction and probation ineligibility. The court found that there was a factual basis for the plea and granted the prosecutors motion to dismiss the remaining counts and allegations. In addition, Caporale admitted that she had violated the terms of her probation in another case, and the court revoked her probation.

C. Sentence

On February 8, 2007, the court denied probation and sentenced Caporale to an aggregate term of five years, consisting of the low term of two years for count 3, with a consecutive three-year term for the allegation under Health and Safety Code section 11370.2, subdivision (c). As for count 1, the court imposed the low term of 16 months to run concurrent to count three. The court also revoked and terminated her probation.

The court awarded Caporale 182 days of presentence custody credit and ordered her to pay a $200 restitution fine (Pen. Code,  1202.4), a $20 court security fee (Pen. Code,  1465.8, subd. (a)(1)), and a $200 fine under Penal Code section 1202.45, suspended pending completion of parole. Caporale was also ordered to register as a narcotics offender.

Caporale filed a notice of appeal on April 4, 2007, contending that she challenged the validity of her plea and was Depriv[ed] of Counsel [] (People vs Holland) (1978). She explained that she was deprived of her right to counsel before she entered into her plea agreement, was coerced into signing the plea bargain because her attorney led her to believe she would be going to a drug treatment program, and her attorney did not communicate properly to her or did not develop a meritorious defense. She further complained that the court was not advised that she was accepted into two treatment programs.

The court granted a certificate of probable cause on April 9, 2007.

II. DISCUSSION
Caporales appellate counsel represented in the opening brief in this appeal that she has written Caporale at her last known address and advised her of her opportunity to file a supplementary brief and to request the court to relieve appellate counsel from representation if she so desires. This court has not received such a request or supplemental written argument from appellant.

We find no arguable issues on appeal. There are no legal issues that require further briefing.

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

^[1] The probation report indicates that Caporale was read her Miranda rights at the station.